Citation Nr: 1511951
Decision Date: 03/20/15 Archive Date: 04/01/15
DOCKET NO. 13-05 891 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Evaluation of posttraumatic stress disorder (PTSD), initially rated as 30 percent disabling.
2. Evaluation of PTSD, rated as 70 percent disabling effective April 17, 2013.
3. Entitlement to a total rating for compensation on the basis of individual unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran served on active duty from July 2005 to December 2006 and from February 2008 to March 2009.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The April 2011 rating decision granted service connection for PTSD and assigned a disability rating of 30 percent, effective November 8, 2010. During the course of the appeal, in a May 2013 rating decision, the Veteran was granted an increased, 70 percent disability rating for PTSD, effective April 17, 2013. The Veteran has not indicated that he agrees with the higher rating assigned for his PTSD. Therefore, the grant of a higher rating is not a full grant of the benefits sought, and the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993).
The issues of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran's PTSD most closely approximates occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as depression, irritability, anxiety, suicidal ideation, and difficulty in adapting stressful circumstances; total occupational and social impairment is not shown.
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 70 percent for PTSD, prior to April 17, 2013, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2014).
2. The criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in November 2010, to the Veteran. This letter explained the evidence needed to substantiate the initial claim for service connection, as well the legal criteria for entitlement to such benefits; the Veteran's claim for an increased rating is downstream from claim for service connection. Nevertheless, the letter explained the evidence necessary to substantiate claim for an increased rating, as well as the legal criteria for such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4).
The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was also afforded VA examinations responsive to the claim for an increased rating. The examination reports contain all the findings needed to rate the Veteran's service-connected PTSD, including history and clinical evaluation. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal.
The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Disability Evaluations
Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected PTSD has not materially changed and a uniform evaluation is warranted.
The Veteran's PTSD is evaluated as 30 percent disabling for the rating period prior to April 17, 2013 and as 70 percent disabling thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id.
A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130.
When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117-18.
The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130.
After a review of all the evidence, the Board finds that the Veteran's service-connected PTSD more nearly approximates the criteria for a 70 percent disability evaluation for the entire rating period on appeal. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran's social and occupational impairment for the entire rating period. Throughout the rating period, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as unprovoked irritability, depression, nightmares, anxiety, and difficulty with concentration and memory, as demonstrated by the findings at the November 2011 and April 2013 VA examinations.
The Veteran complained of nightmares, sleep impairment, social isolation, irritability, hyperstartle response, anxiety, hypervigilance, and depression at his VA examinations and in seeking treatment. The current 70 percent disability evaluation accounts for the Veteran's moderately severe social and occupational impairment, as caused by these symptoms.
The VA examiners assigned GAF scores of 49 at the November 2011 VA examination and 45 at the April 2013 VA examination. A GAF score is probative, as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). These GAF scores, as well as the clinical findings on examination, are consistent with moderately severe symptomatology. See DSM-IV at 44-47; 38 C.F.R. § 4.2 (2014).
The evidence does not show that the Veteran experiences total occupational and social impairment due to his symptoms. He does not have manifestations such as grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Code 9411. As previously discussed, the Board acknowledges that the Veteran's PTSD symptoms are suggestive of occupational and social impairment due to deficiencies in work, family relations, and mood. Nonetheless, as noted in the VA examination reports and the Veteran's VA treatment records, the Veteran's functional impairments are not so severe as to impair his thought processes. There was no evidence of delusions or hallucinations, and although the Veteran has reported suicidal ideation, he has not reported plan or intent, nor has he reported homicidal ideation. His insight and judgment are intact. Further, VA treatment notes and the VA examination reports indicate that the Veteran is able to communicate effectively and that he is alert and oriented, with appropriate speech, normal thought processes, and good hygiene. Significantly, the VA examiners assessed that the Veteran's service-connected PTSD was productive of no more than moderately severe effects on his activities of daily living.
Although fluctuations in symptomatology, GAF scores, and overall impairment are inevitable during the course of such a lengthy appeal period, the Board reiterates that the Veteran's symptoms are nearly the same as those listed in the criteria for a 70 percent rating and the examiners' characterization of these symptoms were indicative of at most moderately severe impairment caused by the disorder. Moreover, there was no specific indication to the contrary in the Veteran's statements. The Board also recognizes the Veteran's occupational and social impairment. However, the Veteran does not lack social relationships; he remains in regular contact with his children, has a girlfriend and a roommate, and remains in contact with his sisters and parents. Thus, these symptoms do not demonstrate total occupational and social impairment. For these reasons, the Board finds that a preponderance of the evidence is against an initial disability evaluation in excess of 70 percent for PTSD for the entire period. 38 C.F.R. §§ 4.3, 4.7.
As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.
The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records and which provided the basis for the disability rating that was assigned. The Veteran primarily complained of anxiety, intrusive thoughts, irritability, and sleep impairment, which were clearly contemplated in the currently assigned disability evaluation. In any event, the evidence does not reflect that there has been frequent hospitalization or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Additionally, there is no indication that the Veteran's PTSD, standing alone, had an impact on his employment beyond that which is contemplated by the rating criteria. Therefore, referral for consideration of extraschedular ratings for the Veteran's PTSD is not warranted. 38 C.F.R. § 3.321(b)(1).
Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to a 70 percent disability evaluation for PTSD is granted for the rating period prior to April 17, 2013, subject to the controlling regulations applicable to the payment of monetary benefits.
Entitlement to a disability rating in excess of 70 percent for PTSD is denied.
REMAND
A claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board notes that the Veteran has not formally filed a claim of entitlement to a TDIU. However, during the increased rating claim for PTSD, the Veteran alleged that his service-connected disability precludes him from obtaining or maintaining gainful employment. Therefore, a TDIU claim is raised by the record in this case. The TDIU claim has not yet been adjudicated by the RO. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran a VCAA notice letter pertaining to a claim for entitlement to TDIU, and allow for a reasonable period to respond. The RO/AMC should request that the Veteran provide sufficient information and authorization to enable it to obtain any additional evidence pertinent to the claim for TDIU.
2. After completing all indicated development, the RO should adjudicate the claim for TDIU in light of all the evidence of record. If the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs